VZCZCXYZ0020
PP RUEHWEB

DE RUEHPE #0405/01 0821912
ZNR UUUUU ZZH
P 231912Z MAR 09
FM AMEMBASSY LIMA
TO RUEHC/SECSTATE WASHDC PRIORITY 0245
INFO RUEHBJ/AMEMBASSY BEIJING 0434
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RUEHLP/AMEMBASSY LA PAZ MAR OF COMMERCE WASHINGTON DC
RUEHRC/DEPT OF AGRICULTURE WASHINGTON DC

UNCLAS LIMA 000405 
 
SIPDIS 
 
FOR OES/ENRC SSEYMOUR 
 
E.O. 12958: N/A 
TAGS: EAGR SENV TBIO PE
SUBJECT: ACCESSING GENETIC RESOURCES IN MEGADIVERSE PERU 
 
REF: STATE 9667 
 
INTRODUCTION AND SUMMARY 
------------------------ 
 
¶1.  As one of the five most biodiverse countries on the 
planet, Peru has been at the forefront of international 
discussions on accessing genetic resources.  In Peru, genetic 
resources are part of the national patrimony, making the 
national Government of Peru (GOP) responsible for their 
management.  Peru's laws and regulations are largely based on 
and governed by Andean Community (CAN) norms, like Decision 
391 "Common Regime on Access to Genetic Resources."  In 2008 
and 2009, the GOP modified its relevant laws and published 
genetic resources regulations complementing Decision 391. 
The lead agency, the Ministry of Environment, was only 
founded in mid-2008, so is still getting its bearings and 
solidifying its institutionality.  While many details on 
specific procedures remain to be defined, Peru's new 
framework does provide overarching guidance on access and 
benefit sharing (ABS) related to genetic resources.  The 
points of contact listed on the Convention for Biological 
Diversity's (CBD) website are up-to-date and knowledgeable. 
END INTRO AND SUMMARY. 
 
¶2.  Following are responses to reftel questions.  These 
responses were drawn from relevant laws and regulations, as 
well as provided by Peru's CBD focal point for ABS, Maria 
Luisa del Rio, Director General of Biological Diversity in 
the Ministry of the Environment, on March 19, 2009. 
 
BIOLOGICAL RESOURCES: 
NORMS, AUTHORITIES & PERMITS 
---------------------------- 
 
¶3.  Research on biological resources is governed mainly by 
the regulations (approved by Supreme Decree 002-2009-AG in 
January 2009) of Peru's revised Forestry & Wildlife Law.  The 
law specifies that the lead office for extracting forestry 
and wildlife resources (including for research purposes) is 
the Ministry of Agriculture's (MINAG) Forest and Wildlife 
Directorate General (www.minag.gob.pe).  The competent 
authority for cultivated species is MINAG's National 
Institute for Agricultural Innovation (INIA, 
www.inia.gob.pe).  The office that oversees and issues 
permits for aquatic resources is the Directorate General of 
Extraction of the Ministry of Production's (PRODUCE) Vice 
Ministry of Fisheries (www.produce.gob.pe/ 
portal/portal/apsportalproduce/pesqueria?ARE= 3). 
 
¶4.  The most relevant provisions are in the regulations' 
Title X "Forest & Wildlife Research."  These articles include 
the designation of the Forest & Wildlife Directorate General 
as the competent authority for issuing forest and wildlife 
research permits, a requirement that researchers deposit 50% 
of each type of specimen of collected material at a 
national-level institution possessing biological collections, 
and a reminder that biological specimen collection or 
research permits do not include authorization to use the 
corresponding genetic resources (a separate process described 
below).  They also state that researchers must commit to: 
not transfer specimens to third parties, provide three copies 
of the final report in Spanish, provide six copies of any 
resulting publications, include at least one Peruvian in the 
research team, among other things. 
 
¶5.  The specific procedures required to obtain permits to 
collect biological specimens are developed by the 
corresponding competent authority.  These procedures are 
defined further in each ministry's Unique Text of 
Administrative Procedures (TUPA), and available on their 
websites.  Since the law and regulations were only finalized 
in January 2009, most of these TUPAs are still undergoing 
revision. 
 
¶6.  Forestry and wildlife oversight and sanctions are defined 
in Title XIV of the regulations.  Responsible entities 
include MINAG's Directorate General, OSINFOR (independent 
supervisory agency), the police, customs (SUNAT), and the 
military (for some border matters). 
 
EXPORTING NON-CITES SPECIES 
--------------------------- 
 
¶7.  Per the Forestry & Wildlife Law regulations (Article 
375), export permits for research purposes of non-CITES 
biological specimens are authorized by MINAG's Directorate 
General for Forestry & Wildlife.  The Directorate General 
also issues non-CITES forestry and wildlife export permits 
for other purposes (Article 355).  Export permits for 
components of biological diversity (seeds, specimens, etc.) 
do not authorize varietal improvement activities, biotech 
research or development, or industrial application, nor can 
they grant property rights on their genetic resources.  The 
following provisions for certain commercial exports are 
defined in Articles 311 & 325.2: 
 
-- for ornamental species (including ferns and bryophytes), 
only specimens bred in production centers that have proper 
management plans and export permits (approved and issued by 
the Regional Wildlife Authority) can be exported; and 
-- exports of forest seeds are subject to the provisions of a 
series of listed laws and international treaties. 
 
¶8.  The corresponding detailed revised procedures, 
requirements and conditions for obtaining the export permits 
have not yet been finalized by the Directorate General.  When 
ready, they will be included in MINAG's TUPA.  In the 
interim, the pre-existing administrative procedures used by 
the predecessor Natural Resources Institute (INRENA) are in 
force. 
 
IMPORTING & INTERNAL SHIPMENT 
OF NON-CITES SPECIES 
----------------------------- 
 
¶9.  The non-CITES forest and wildlife import provisions 
(Articles 298 & 356) require a document issued by the 
appropriate authority in the country of origin verifying the 
legal rights to the specimen.  They also refer to 
requirements contained in agricultural health laws; 
international agreements subscribed by Peru on biosecurity, 
zoosanitary and phytosanitary matters; and tax and customs 
provisions.  The general sanitary norms must always be 
followed, including when moving specimens.  The competent 
authority is MINAG's National Agrarian Health Service 
(SENASA, www.senasa.gob.pe).  Except for protected species, 
the only rules for internal/domestic shipment of research 
specimens are the corresponding sanitary regulations. 
 
ACCESSING GENETIC RESOURCES 
--------------------------- 
 
¶10.  The laws and regulations pertaining to genetic resources 
are Andean Community (CAN) Decision 391 (available in English 
at www.comunidadandina.org /ingles/normativa/d391e.htm) and 
Peru's new Regulations for Access to Genetic Resources 
(hereafter "GR regs," available in Spanish at 
www.minam.gob.pe /index.php?option=com docman&Itemid=69). 
These GR regs establish the procedures to be followed in 
order to access genetic resources.  The procedures have two 
phases:  verification that administrative requirements have 
been met and negotiation with the GOP on the specific access. 
 The final step is the signing of the access contract with 
the GOP and publication of the corresponding resolution.  The 
country of origin of genetic resources must be disclosed in 
patent applications developed as a result of the research. 
 
¶11.  While the Environment Ministry (MINAM, www.minam.gob.pe) 
is the lead agency for the general framework, the competent 
authority for verifications and negotiations depends n the 
type of resource in question (Article 15 of the GR regs). 
For cultivated species, the authority is MINAG's National 
Institute for Agricultural Innovation (INIA, 
www.inia.gob.pe); for wildlife, it is MINAG's Forest and 
Wildlife Directorate General (www.minag.gob.pe), in 
consultation with INIA (Article 377 of Forest & Wildlife 
regulations); and for aquatic species, it is the Ministry of 
Production's (PRODUCE) Vice Ministry of Fisheries 
(www.produce.gob.pe/ portal/portal/apsportalproduce/ 
pesqueria?ARE=3).  While each competent authority is 
responsible for negotiating and signing access contracts, the 
Environment Ministry must clear on the corresponding 
resolution before it is published.  If the access request 
includes genetic resources from more than one sector, MINAM 
leads the negotiations. 
 
¶12.  Access contracts must include the following at a minimum 
(see Article 23 of GR regs for full list, and Article 25 for 
framework contracts): 
 
-- prohibition from claiming property ownership (including 
intellectual property) of the genetic materials per se or 
derived products; 
-- obligation not to transfer to third parties without 
authorization of competent authority; 
-- recognition of the origin of the resource; 
-- participation of Peruvian professionals in the collection 
and genetic research activities; 
-- strengthening and capacity building of the support entity 
or resource provider (through training, equipment, 
infrastructure, etc.); 
-- commitment to transfer scientific and technical knowledge 
resulting from the access activities to these professionals; 
-- strengthening and capacity building of indigenous peoples 
and communities with respect to associated intangible 
components; 
-- commitment to share progress, results and publications (in 
Spanish) with competent authority; 
-- publications and reports must acknowledge Peruvian origin 
of the resource; and 
-- economic compensation for the GOP for benefits generated 
from the access and use of the genetic resources. 
 
¶13.  Using these and other guidelines established by MINAM, 
each authority defines its specific procedures and publishes 
them in their Unique Text of Administrative Procedures 
(TUPA), found on each agency's website.  Since the genetic 
resources and forestry & wildlife regulations were just 
published in 2009, most of these TUPAs are still undergoing 
revision.  Guidelines on fair and equitable benefit sharing 
are also in the process of being established.  Once the 
revisions are complete, MINAM hopes to publish a detailed 
guide on accessing biological and genetic resources. 
 
¶14.  Framework access contracts, allowing multiple access to 
multiple resources, can be signed with universities or 
research centers, or with researchers that regularly access 
genetic resources (Title VII of GR regs).  The framework 
contracts are for research purposes only, so access for 
commercial use must be specified in a separate access 
contract. 
 
¶15.  Supervision and sanctioning are done at the national 
level by the aforementioned competent authorities, following 
MINAM guidelines.  Additional supervision mechanisms can be 
established in the access contracts.  For example, the 
National Support Entity (usually a regional or local 
institution) can perform oversight, or visits or exchanges 
between providers and users of the resources can be arranged. 
 Sanctions can include (Title X of GR regs):  suspension of 
access, cancellation of access authorization, seizure of 
material, fines, ban from presenting future access requests, 
and cancellation of registry.  Also, the GR regs (Title XI) 
establish a National Mechanism for the Integrated Supervision 
and Follow-Up of Genetic Resources under the Environment 
Ministry. 
MAT, PIC & BENEFIT SHARING 
-------------------------- 
 
¶16.  The GR regs (Article 20) state that access contracts 
(signed with the GOP) and accessory contracts (signed with 
the land or building owner where the resource is found, 
conservation center, owner of the biological resource 
containing the genetic resource, or the national support 
institution) must contain provisions on prior informed 
consent (PIC), mutually agreed terms (MAT), and, where 
applicable, fair and equitable benefit sharing, in accordance 
with the CBD and the Bonn Guidelines.  The negotiation norms, 
authorities and procedures are those described above.  The 
regulations of the Forestry & Wildlife Law (Article 370) 
require PIC in writing for research that involves traditional 
knowledge of communities or individuals. 
 
¶17.  Coordinating processes for MAT and PIC regulations, 
issues and processes have not yet been established.  However, 
coordination is required by the GR regs, and training of the 
relevant actors (MINAM, other competent agencies, native 
communities, customs, regional governments, etc.) is being 
programmed.  The National Committee for Biological Diversity 
(CONADIB) is a multi-sectoral (government, NGOs, private 
sector, academia) consultative body on conservation and 
sustainable use of biological resources that contain genetic 
resources. 
 
¶18.  Recipient authorities or funds for shared financial 
benefits have not been specified.  Non-monetary benefits are 
established in the access contracts, with the GOP 
prioritizing the capacity building of native communities and 
regional and local entities, particularly universities and 
research centers.  Since the genetic resources and forestry 
and wildlife regulations were just approved in 2009, 
guidelines on fair and equitable benefit sharing are still in 
the process of being established. 
 
GENETIC MATERIAL TRANSFER AGREEMENTS 
------------------------------------ 
 
¶19.  Per Title IX of the GR regs, genetic material transfer 
agreements (MTA) are required anytime material is removed 
from ex-situ conservation centers.  A model MTA is in the 
works (in line with CBD, Bonn Guidelines and the 
International Plant Protection Convention), but at a minimum 
must include conditions like: 
-- forbid transfer to third parties without prior informed 
consent of competent authority; 
-- acknowledgment of the origin of the material; and 
-- prohibit user from claiming property ownership (including 
intellectual property) of the genetic materials or derived 
products. 
 
TRADITIONAL KNOWLEDGE 
--------------------- 
 
¶20.  If traditional (collective) knowledge is involved, there 
are additional requirements governed by Andean Community 
norms and Peru's Law 27811.  The lead office on these issues 
is the Inventions Directorate of the National Institute for 
the Defense of Competition and Intellectual Property 
Protection (INDECOPI, www.indecopi.gob.pe/ 
destacado-propInte-oficinas-oin-pres.jsp).  By law, the 
Indigenous Peoples Development Fund must receive a share of 
financial benefits derived from the use of traditional 
knowledge related to biological resources.  In addition to 
the INDECOPI office, the National Institute for Andean, 
Amazonian and Afroperuvian Peoples (INDEPA, 
www.indepa.gob.pe) manages this process and fund.  The 
regulations of the Forestry & Wildlife Law (Article 370) 
require prior informed consent in writing for research that 
involves traditional knowledge of communities or individuals. 
 
INFORMATION FOR RESEARCHERS 
--------------------------- 
 
¶21.  There is no handbook for researchers yet, though 
portions of this cable could be provided in the interim.  The 
laws and regulations are publicly available, as are the 
administrative procedures (TUPAs), which are being revised to 
reflect the new laws and regulations. 
MCKINLEY